In Robertson v. The Thomson Corporation et al., a judgment rendered on October 12, 2006, the Supreme Court of Canada has now ruled on the interplay between the copyright of a freelance author in an individual work published with authorization in a newspaper and the separate and distinct copyright in the newspaper as a collective work or compilation.
In the action, the Plaintiff, a freelance author, alleged that the Defendants had infringed the copyright in her articles by reproducing the works in electronic databases and on CD-ROMs. The Plaintiff had authorized the one-time publication of the articles in the Defendants' newspaper, but the agreements were silent on the issue of electronic rights. In defence, the Defendants asserted that they owned copyright in the newspaper as a collective work or compilation, and thus they had the exclusive right to copy the work, or a substantial part thereof, in any material form, including electronically. Thus, the Defendants asserted that the reproduction of the articles in the electronic databases and CD-ROMs fell within the scope of their copyright in the newspaper.
At first instance, on a motion for summary judgment, the Defendants were found to have infringed the Plaintiffs' copyright by reproduction of the articles on the electronic databases and on the CD-ROMs. The Ontario Court of Appeal upheld the finding of infringement in a 2:1 split decision.
The Supreme Court of Canada unanimously concluded that the majority of the Court of Appeal erred in holding that the reproduction of the articles on the CD-ROMs constituted an infringement of the Plaintiff's copyright. The nine judges of the Supreme Court were all of the view that the CD-ROMs sufficiently preserved the originality of the newspaper to constitute a copy of a “substantial part” thereof. However, in a 5:4 split decision, the Court concluded that the reproduction of the articles on the database were decontextualized to the point that they were no longer presented in a manner that maintained the originality of the newspaper. The majority of the Court was of the view that the databases reproduced the originality of the articles themselves rather than that of the newspaper and thus, infringed the Plaintiff's copyright in the articles.